By: Leibowitz H.B. No. 4249
A BILL TO BE ENTITLED
AN ACT
relating to expert reports in health care liability claims.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 74.351, Civil Practice and Remedies
Code, is amended to read as follows:
(a) In a health care liability claim, a claimant shall, not
later than the 120th day after the date the original answer is
[petition was] filed serve on each party or the party's attorney one
or more expert reports, with a curriculum vitae of each expert
listed in the report for each physician or health care provider
against whom a liability claim is asserted. A party asserting a
healthcare liability claim by joining a physician or health care
provider as a defendant, third-party defendant, cross-defendant,
counter-defendant or designating a physician or health care
provider as a responsible third party in any pending healthcare
liability claim shall, not later than the 120th day after the date a
physician or health care provider against whom a health care
liability is joined as a party or designated as a responsible third
party in a healthcare liability claim, serve on each party or the
party's attorney one or more expert reports, with a curriculum
vitae of each expert listed in the report for each physician or
health care provider that has been joined as a party or designated
as a responsible third party. The date for serving the report may
be shortened or extended by written agreement of the parties or by
order of the court. Each defendant physician or health care
provider whose conduct is implicated in a report must file and serve
any objection to the adequacy [sufficiency] of the report not later
than the 21st day after the date it was served, failing which all
objections are waived. For purposes of this provision "service"
shall be presumed accomplished if done by U.S. Mail, electronic
mail, hand delivery, or any method of service provided by the Texas
Rules of Civil Procedure.
(d) Objections to and motions challenging the adequacy of an
expert report must be clear, specific and tailored to the specific
report to which they are directed and must specify how the expert
report is claimed to be inadequate. Objections that are found to be
conclusory, non-specific or not tailored to the specific report
being challenged are waived.
(e) In the event a physician or health care provider appeals
a denial of a motion challenging the adequacy of an expert report
and the denial is not reversed, the court shall enter an order that
awards to the claimant and against the physician and/or other
health care providers who challenged the adequacy of the report,
reasonable attorney's fees and costs of court, related to the
challenge and its appeal.
[Subsections (f)-(h) reserved]
(i) Notwithstanding any other provision of this section, a
claimant may satisfy any requirement of this section for serving an
expert report by serving reports of separate experts regarding
different physicians or health care providers or regarding
different issues arising from the conduct of a physician or health
care provider, such as issues of liability and causation. Nothing
in this section shall be construed to mean that a single expert must
address all liability and causation issues with respect to all
physicians or health care providers or with respect to both
liability and causation issues for a physician or health care
provider. Nothing in this section or the expert report served in
accordance with Subsection 74.351(a) shall be construed to limit a
health care liability claim to the opinions contained in the expert
report in any subsequent pleadings, proceedings or trial.
(k) Subject to Subsection (t), an expert report served under
this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other
proceeding; [and]
(3) shall not be referred to by any party during the
course of the action for any purpose, and
(4) shall not be construed to limit the claimant's
proof or pleading in the case.
(r) In this section:
(1) "Affected parties" means the claimant and the
physician or health care provider who are directly affected by an
act or agreement required or permitted by this section and does not
include other parties to an action who are not directly affected by
that particular act or agreement.
(2) "Claim" means a health care liability claim,
including designation of a physician or health care provider as a
responsible third party in a health care liability claim.
[(3) reserved]
(4) "Defendant" means a physician or health care
provider against whom a health care liability claim is asserted.
The term includes a counterdefendant, or responsible third
party.third-party defendant, cross-defendant, [or]
(5) "Expert" means:
(A) with respect to a person giving opinion
testimony regarding whether a physician departed from accepted
standards of medical care, an expert qualified to testify under the
requirements of Section 74.401;
(B) with respect to a person giving opinion
testimony regarding whether a health care provider departed from
accepted standards of health care, an expert qualified to testify
under the requirements of Section 74.402;
(C) with respect to a person giving opinion
testimony about the causal relationship between the injury, harm,
or damages claimed and the alleged departure from the applicable
standard of care in any health care liability claim, a physician who
is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence;
(D) with respect to a person giving opinion
testimony about the causal relationship between the injury, harm,
or damages claimed and the alleged departure from the applicable
standard of care for a dentist, a dentist or physician who is
otherwise qualified to render opinions on such causal relationship
under the Texas Rules of Evidence; or
(E) with respect to a person giving opinion
testimony about the causal relationship between the injury, harm,
or damages claimed and the alleged departure from the applicable
standard of care for a podiatrist, a podiatrist or physician who is
otherwise qualified to render opinions on such causal relationship
under the Texas Rules of Evidence.
(6) "Expert report" means a written report by an
expert that provides a fair summary of the expert's opinions as of
the date of the report based upon the information and data available
to the expert at the time of the report, regarding applicable
standards of care, the manner in which the care rendered by the
physician or health care provider failed to meet the standards, and
the causal relationship between that failure and the injury, harm,
or damages claimed.
(s) Until a claimant has served the expert report and
curriculum vitae as required by Subsection (a), all discovery in a
health care liability claim is stayed, except nothing herein shall
preclude the claimant from deposing one or more defendants prior to
serving the 120 day report, and except for the acquisition by the
claimant of information, including medical or hospital records or
other documents or tangible things, related to the patient's health
care through:
(1) written discovery as defined in Rule 192.7, Texas
Rules of Civil Procedure;
(2) depositions on written questions under Rule 200,
Texas Rules of Civil Procedure; [and]
(3) discovery from nonparties under Rule 205, Texas
Rules of Civil Procedure;
(4) pre-suit depositions allowed under Rule 202, Texas
Rules of Civil Procedure; and
(5) upon showing of good cause, oral depositions to
obtain factual data in support of claims set for in claimant's
pleadings on file with the court.
(t) If an expert report is used by the claimant in the course
of the action for any purpose other than to meet the service
requirement of Subsection (a), the restrictions imposed by
Subsection (k) on use of the expert report by any party are waived.
(u) Notwithstanding any other provision of this section,
after a claim is filed all claimants, collectively, may take not
more than two oral and videotaped depositions pursuant to Rule 191,
Texas Rules of Civil Procedure, of any party or witness before the
expert report is served as required by Subsection (a). The court
may allow additional oral and videotaped depositions pursuant to
Rule 191, Texas Rules of Civil Procedure, of any party or witness on
a showing by a claimant that additional information is needed for
the completion of an expert report that cannot otherwise
practicably be obtained in a timely manner under this section and
Subsection (s).
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.